Each application for variance shall be reviewed for compliance with the purpose and intent of the Planning and Zoning Code. The applicant shall submit sufficient evidence that demonstrates that literal enforcement of the Code will result in practical difficulties which unreasonably deprive the owner or applicant of a permitted use of the property and that application of the Code to the property is inequitable. The Announcement of Decision shall make specific findings of fact addressing the factors that are applicable to the property, and shall discuss the preponderance of reliable, probative and substantial evidence in the record that supports the Board's decision.
(a) Area Variance. An applicant or owner may seek an area variance when strict compliance with the requirements of the Planning and Zoning Code will result in practical difficulties that unreasonably deprive the owner or applicant of a permitted use of the property. The applicant shall demonstrate by the preponderance of reliable, probative and substantial evidence that the applicable criteria for practical difficulties are satisfied. The factors to be considered and weighed by the Planning Commission to determine whether practical difficulties to the use of the property exist include but are not limited to:
(1) Whether special conditions and circumstances exist which are peculiar to the land or structure involved and which are not applicable generally to other lands or structures in the same zoning district, such as exceptional irregularity of shape; limitations upon the size, dimensions, terrain or grade of the lot; or proximity to a nonconforming or incompatible use, structure or condition;
(2) Whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance;
(3) Whether the variance is substantial;
(4) Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance;
(5) Whether the variance would adversely affect the delivery of governmental services (e.g. water and sewer);
(6) Whether the property owner purchased the property with knowledge of the zoning restrictions. The applicant or property owner shall be given the opportunity to establish practical difficulty despite knowledge of the zoning restriction when the land was purchased;
(7) Whether special conditions or circumstances exist as a result of actions of the owner;
(8) Whether the property owner's predicament feasibly can be obviated through some method other than a variance and the variance sought is the minimum that will afford relief; and
(9) Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting a variance.
(b) Use Variance. An applicant or owner may seek a use variance when strict compliance with the requirements of the Planning and Zoning Code will result in unnecessary hardship, or the property cannot be used for purposes for which it is zoned. The applicant shall demonstrate unnecessary hardship by the preponderance of reliable, probative and substantial evidence that all of the following criteria are satisfied:
(1) The property cannot be put to an economically viable use under any of the permitted or conditional uses allowed in the zoning district; an economically viable use does not mean a more profitable use;
(2) The variance requested stems from a condition which is unique to the property at issue and not ordinarily present in other nearby properties;
(3) The unnecessary hardship is not a condition created by actions of the owner or applicant;
(4) Did the applicant or owner purchase the property with knowledge of the zoning restrictions on its use, or the zoning restrictions on an increased number of dwelling units on the parcel;
(5) The variance will not alter the character and use of the zoning district;
(6) The variance will not adversely affect the rights of adjacent property owners or residents;
(7) The variance will not adversely affect the public health, safety or general welfare;
(8) The variance is consistent with the general spirit and intent of the Planning and Zoning Code; and,
(9) The variance sought is the minimum that will afford relief to the owner or applicant.
(c) Conditions and Safeguards of the Variance. The Planning Commission may further prescribe conditions attached to the variance and a financial guarantee or bond to assure compliance.
(d) Term and Extension of Variance. The applicant shall commence construction, or obtain an extension of time to start construction, within one (1) year from the date of the Announcement of Decision. For the purposes of this section, construction shall commence on the date of the Preconstruction meeting unless otherwise specified in the Announcement of Decision. A variance shall not be modified except by amendment of the Announcement of Decision.
(Ord. 3273. Passed 5-9-24.)